WHAT'S LAW GOT TO DO WITH IT? DIGNITY AND MENSTRUATION.

• Author: Cooper, Elizabeth B.
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

Dignity--dig*ni*ty | \ 'dig-ne-te--The "quality or state of being worthy, honored, or esteemed." (1)

When I think about all that is wrong in the world--the threat to democracy in the United States, (2) the persistent systemic and individually-inflicted racism, (3) the devastation wrought by COVID-194 (4)--I find myself asking, "Why do I care so much about menstrual laws and policies?" The answer, I have realized, is quite simple: the failure of the government and private institutions to adopt sane, respectful, smart policies concerning menstruation is an affront to dignity.

Myriad policies intruding on a menstruator's right to dignity are described throughout this Symposium and include: failing to include menstrual products in emergency-preparedness or response packages; (5) not supplying public school students with free access to quality products; (6) enying free and ready access to such products to people who are incarcerated or detained through our country's immigration policies; (7) imposing state and use taxes on such products as though they are "non-essential" goods; (8) and not permitting menstruators to bring their own products into the bar exam. (9)

1. Dignity

   These are all deeply flawed policies and practices, but why do they implicate dignity? My answer is twofold: our periods are so deeply personal, relating directly to principles of bodily integrity (10) and our ability to manage them safely and affordably affects our ability to engage fully with the external world. (11) An affront to dignity around menstruation both reinforces the negative messages we receive about our bodies and reiterates the message that if we are bleeding--whether as women, trans men, or gender queer individuals--we do not belong. (12)

   There are countless theories of dignity that can inform this discussion. (13) First, in law, the Supreme Court has employed the concept of dignity in numerous contexts (14)--most powerfully in a quartet of LGBTQ cases decided over two decades. (15) Fundamentally, the Court recognized dignity as a counterweight to stigma, ultimately holding in Obergefell v. Hodges that laws that historically "impose stigma and injury" cannot withstand constitutional scrutiny. (16) Thus, the Court envisions dignity to be the opposite of, and perhaps an antidote to, stigma. (17)

   Second, in the medical setting, dignity is understood as deeply tied to autonomy: without the latter, one cannot have the former. (18) Historically, autonomy developed from the concept of bodily integrity, (19) but it has evolved to encompass richer dimensions of informed consent that embrace the values of self-determination and dignity. (20) In the medical context, "this right to self-determination is primarily a negative right to non-interference: the right to make decisions concerning one's own life for oneself without being controlled by others." (21) Somewhat relatedly, the psychologists who developed self-determination theory describe it and its elements--autonomy, competence, and the capacity to develop relationships--as essential for one's intrinsic well-being. (22)

   Perhaps the conceptualization of dignity that best captures the principles found in these legal, medical, and psychological conceptions--and that speaks to the private/public experience of menstruation described supra--is bioethicist Nora Jacobson's explication of "social dignity," which she identifies as having two related parts: dignity-of-self and dignity-in-relation. (23) Dignity-of-self addresses self-respect and self-worth. (24) Dignity-in-relation describes how individuals are treated by other people, organizations, or entities, and is defined by "the mores and traditions of a particular community or society." (25)

   In Jacobson's model, every interaction can violate or promote dignity (a "dignity encounter"). (26) Violations typically happen when the action occurs in "harsh circumstances" and the actors occupy two different positions, one of vulnerability and the other of antipathy. (27) Fundamentally, there must be an asymmetry of "power, authority, knowledge, wealth, or strength." (28) When the disparity exists on a societal level, "racism or sexism or economic disparity flourish." (29)

   The personal and societal dignity violations experienced by menstruators fit perfectly within Jacobson's paradigm. Individuals can experience lowered self-esteem--a diminished dignity-of-self--when others (individuals or organizations) treat them poorly or embarrass them about their periods. (30) On the systemic level, when organizational and governmental policies--springing from ignorance or antipathy--broadly harm menstruators, dignity-in-relation is eroded. (31)

   Although innumerable factors contribute to the dignitary harms experienced by menstruators, I focus on three: Invisibility, Stigma, and Racism/Classism. It is difficult to separate these interdependent social forces, but analyzing them independently will provide the foundation for a strategy to disrupt, and ultimately eliminate, menstruation-based dignity violations.

2. Invisibility

   To some policy makers and employers, women generally and menstruators more specifically, are invisible. Recall the experiences of the first women admitted to law school or medical school for whom no one thought to create a bathroom. (32) Consider the countless times women come up with wonderful ideas that are heard and accepted only when later articulated by men. (33) Think, too, of the ways women are expected to present themselves sartorially--far more ornately than their male peers and partners, who will be seen and heard in a comparatively bland pair of khakis and a button-down shirt. (34)

   The invisibility of transgender individuals is somewhat more complex. Many have remained closeted out of fear of violence, losing their jobs, or social ostracism. (35) Laws and workplace policies have only recently started to change, largely in response to demands by trans and gender non-confirming individuals and their allies. (36) Still, the needs of trans men and gender non-binary individuals who also may menstruate are rarely, if ever, considered. (37)

   Those with the power to create government policies, improve workplace practices, and facilitate access to public accommodations continue to overlook menstruators and their needs. Consider the failure of emergency management personnel to include menstrual products in their provisions for affected individuals; (38) the failure of schools to provide free and safe menstrual products to students--or their failure to place products in locations accessible to trans men and gender non-binary individuals (e.g., putting them only in women's bathrooms); (39) the failure of state boards of law examiners to adopt safe and transparent menstrual policies; (40) the failure of state tax boards to exempt menstrual products from state sales and use taxes, as is done with other essential products; (41) and the failure of prisons and jails to provide free and safe products to those who are incarcerated, while recognizing their obligation to provide other necessities, such as toilet paper.

   In each of these circumstances, those with policymaking authority either failed to consider providing menstrual products (i.e., the affected population was invisible), or they did not consider it important to do so. The resulting harm is tangible as menstruators rely on unhygienic substitutes for products, such as rags or toilet paper; use products longer than recommended, placing their health at risk; and barter other necessary items to obtain products. (42) Further, countless people each year stay home from work or school to avoid the embarrassment of bleeding through their clothing, losing low-wage jobs where absence is not tolerated, and falling behind in their studies. (43)

   As described supra, menstruators subjected to these policies experience not only these physical harms, but also individual dignitary harms that can affect their self-image and their self-confidence (dignity-of-self). (44) Further, there are societal dignitary harms (dignity-in-relation) reflecting the message that the needs and experiences of menstruators just do not matter or that menstruators are not welcome...